By the time DeAngelo Cortijo was 14, he had been in more than a dozen foster homes. He had run away and lived on the streets for months, and he had been diagnosed with bipolar and anxiety disorders, attachment disorder, intermittent explosive disorder or posttraumatic stress disorder. He had been in and out of mental hospitals and heavily medicated.

Cortijo, who was born in San Francisco, was taken from his mother after she attempted suicide when he was 3.

After his later diagnoses, he was prescribed a combination of antipsychotics, antidepressants and stimulants, and was told that taking them was his only hope of being normal. Instead, he said, medication made him feel “doped up and completely lost.”

Second-generation antipsychotics (SGAs) are a class of drugs used to treat psychiatric disorders, such as schizophrenia, bipolar disorder, and psychotic depression. SGAs are widely used to treat children enrolled in Medicaid who have mental health conditions. However, SGAs can have serious side effects and little clinical research has been conducted on the safety of treating children with these drugs. Consequently, children’s treatment with SGAs needs careful management and monitoring. This evaluation examines the quality of care provided to children receiving SGAs that were paid for by Medicaid.

HOW WE DID THIS STUDY

We selected a sample of 687 claims for SGAs prescribed to children in California, Florida, Illinois, New York, and Texas. These States represented approximately 39 percent of total Medicaid payments for SGAs in 2011. Board-certified child and adolescent psychiatrists reviewed medical records related to the sampled claims using seven criteria related to quality-of-care concerns (see the chart below for the criteria). We established these criteria on the basis of information and guidelines issued by various Federal and State agencies and professional associations regarding the prescribing of psychotropic drugs to children.

Many children in foster care are being overmedicated with antipsychotic drugs they may not really need, or the drugs are being given incorrectly, according to a government review obtained by CBS News.

The report by the Inspector General for the Department of Health and Human Services looked at concerns surrounding the use of these powerful drugs in children on Medicaid. Many children on Medicaid are in the foster care system.

“Psychotropic drugs are being used in these children, and we don’t really know what the side effects are in children this young,” said CBS News correspondent Anna Werner. “There’s not a lot of research because you can’t really test these drugs on children.”

Children are our most precious resource and the foster children of Texas need special attention because the state has taken either temporary or permanent guardianship of them in effect making the state and all of its citizens their parent.

This report reveals shocking evidence of the system’s failure regarding the care provided to our foster children. In addition, it raises many red flags pointing to areas of potential fraud and abuse that I am referring to the Office of Inspector General at the Health and Human Services
Commission to investigate. In a separate report, Review and Analysis of The Medicaid and Public Assistance Fraud Oversight Task Force, I am recommending the Office of Inspector General report directly to the Governor and become an independent office.

I am making 48 recommendations to the Medicaid and Public Assistance Fraud Oversight Task Force in this report.

For example, I am urging the Office of Inspector General to fully investigate potential fraud and abuse identified in this report.

The Department of Family and Protective Services should hire a physician to serve as a fulltime medical director responsible for health care for Texas’ foster children.

In April 2004, I recommended DFPS create a “medical passport” for each foster child, which would follow each child as they move from one placement to another. I again call upon DFPS to immediately implement this long-overdue recommendation that would dramatically improve health care for our forgotten children—which could be done by using a simple paper copy system until an electronic version is available.

The medical director should be responsible for ensuring that a foster child’s medical passport be received by the foster child’s caregiver within 48 hours of being placed in a foster home or facility.

HHSC should require prior authorization for prescriptions to address the dispensing of non-FDA approved psychotropic medications for children.
DFPS and the Department of State Health Services should seek lower-cost, less restrictive alternatives to psychiatric hospitalization and immediately develop rules for the psychiatric hospitalization of foster children.

The medical director and the Department of State Health Services should evaluate the case files of all medically fragile foster children and develop best practices for care.

DFPS in coordination with HHSC and the Department of State Health Services should study complementary treatments to psychotropic medications—such as therapy, diet, exercise, therapeutic activities and mentor programs. The Office of Inspector General at HHSC and the State Auditor should review the quality of the physical environments in which foster children live and make recommendations to improve standards for living conditions.

My first investigation into the Texas foster care system in 2004—Forgotten Children—documented the tragic failure of the system. Part of the report focused on psychotropic medications and care prescribed to our foster children. The findings caused me deep concern and led to my decision in November 2004, to look into this aspect of the system more closely.

Out of concern for the foster children of the state of Texas and pursuant to my statutory obligation to review Medicaid claims for fraud under the Government Code Section §403.028, I reviewed the Medicaid claims of foster children in fi scal 2004 in depth. I am disappointed to report that the findings confirmed the conclusions of the Forgotten Children report.

Given the distressing findings contained in this report, I hope that the state will not delay in adopting recommendations, which have been crafted to help mend this broken system. My hope is that the state leadership and the health and human service agencies will work to make things better for our state’s most vulnerable children. This report is available on the Texas Comptroller’s Web site at www.window.state.tx.us.

Texas is great, but we can do better. We have to—for the sake of our children.

To implement the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act), many states GAO surveyed (which included the District of Columbia and Puerto Rico) reported requiring caseworkers to employ multiple practices to improve outcomes for children in foster care; however, states continue to face challenges that can undermine progress. Among the practices that the Department of Health and Human Services (HHS) and others suggested states use, survey respondents reported requiring caseworkers to use group decision-making to maintain family connections, consult with schools, and facilitate adult connections for older youth. At the same time, a majority of surveyed states reported facing challenges, especially related to foster placements (see fig. below).

Major Challenges Reported by States in GAO Survey Regarding Foster Placements

Note: Responses do not sum to 52 if states selected “do not know/not applicable” or did not respond.

Further, the Fostering Connections Act made additional children eligible for federal adoption assistance payments thereby potentially freeing up state funds previously used for this purpose. Although states are required to spend any resulting savings on child welfare services, only 21 states reported calculating these savings for fiscal year 2012, and 20 states reported difficulties performing the calculations. HHS has not provided states guidance in this area, and without it states may continue to struggle with the calculations, leading to potential lost program funding.

HHS approved states’ plans to implement the Fostering Connections Act; however, the agency has not yet monitored states’ actions. HHS regulations specify that states must undergo a complete review of child welfare programs every 5 years, yet HHS’s last review cycle began in 2007—using a tool developed before the act was passed. Internal control standards emphasize using timely data for effective monitoring, but data collected by HHS do not reflect the act’s provisions. In March 2014, HHS announced plans to begin a review cycle in fiscal year 2015, but details about how it would address changes from the act were unavailable. Without adequate monitoring or updated data, HHS lacks information about the implementation of the act and the effectiveness of states’ actions.

Andrea Koehler, The Forgotten Children of the Foster Care System: Making a Case for the Professional Judgment Standard, 44 Golden Gate U. L. Rev. 221 (2014).

“They are everybody’s children, and nobody’s children. They are the forgotten children in the . . . foster care system.”1

INTRODUCTION

Each year, thousands of children are separated from their families and placed into foster care.2 While under the not-so-careful watch of the state, many suffer further abuse and neglect.3 In some cases, child welfare employees are so derelict in their duties that they are unaware children are being harmed. Thus, maltreatment goes undetected. Despite egregious failures to protect the children in its care, the state often suffers no repercussions.

One reason for this travesty is that the “deliberate indifference” liability standard4 applied by most courts sets a low bar for the government’s duty to protect foster children.5 For example, when a caseworker repeatedly fails to perform mandated visits, home studies, and other duties, and, as a result, is unaware that a foster child is being maltreated, the caseworker’s conduct may not be considered sufficiently “conscience shocking”6 for the court to impose liability.7

On the other hand, if courts were to adopt the “professional judgment” liability standard,8 such a pattern of omissions on the part of a caseworker would likely result in a finding of liability and allow the foster child to obtain redress. The following hypothetical9 illustrates the unjust implications of applying the deliberate indifference standard to cases of foster care maltreatment, rather than applying the more appropriate professional judgment standard.

WHISTLEBLOWERS WANTED

CCHR is looking for anyone who knows of incidents of fraudulent prescribing, failure to follow Texas drugging guidelines for children or who has knowledge of illegal referral fees or kickbacks in the drugging of Medicaid children to come forward.

This includes knowledgeable employees of DFPS and HHSC, staff of any local office or clinic, any contractor, foster parent or citizen with knowledge.

Please use the short form below to get in touch with us and someone from our office will contact you. Your information is held in the strictest confidence.

Texas Psychiatry News

Abused children in Texas are being left in psychiatric facilities longer than they were six years ago as the state’s child protective services system grapples with federal court scrutiny and diminishing options, according to data obtained by The Texas Tribune. Last year, 17,151 Texas children were removed from abusive homes. While the agency could not say exactly how […]

Houston police found the 16-year-old foster child in a park in early November 2013, just a few days after she ran away from a residential treatment center in northwest Houston. Rosario, a baby-faced, black-haired girl who carried a little extra weight, said she’d been selling her body for money. The cops returned her to the […]